As I discussed in the context of the Sprint/Clearwire/Etc. spectrum menage (and discussed a bit more with Gordon Cook on his blog), the reality of the post-700 MHz auction world makes it necessary for cable operators to have some kind of wireless strategy if they want to meet the potential next generation competitive threat from either AT&T and Verizon or possibly from newly en-spectrumed DISHTV. At the same time, cable operators are desperate to avoid the downdrag on the their stock that would come from a heavy investment in wireless licenses and further nvestment in infrastructure — especially when analysts don’t give them a prayer of taking on the wireless carriers in what has become a reasonably mature market. How to resolve this difficult dilemma?

Those cable systems with the combination of resources and forethought to address this have opted for different solutions. Comcast, Time Warner and Brighthouse –through their new partnership with Sprint/Clearwire etc. — have flopped back to the old cable standard of joint ventures and strategic investment. (Anyone else remember @Home Network?) Cox went out and won its own set of licenses covering its cable service area, as did Charter parent Vulcan Enterprises (as have a few lesser systems, such as Washington Post owned CableOne, which captured a bunch of licenses in the AWS auction).

Cablevision tried twice to acquire its own set of licenses: first in the AWS Auction in 2006, and again in the 700 Mhz Auction. Both times Cablevision went home empty-handed, outbid by the wireless giants. With no new spectrum on the horizon, and apparently no invite into the Sprint/Clearwire Happy House ‘o WiMax partnership, Cablevision found itself in need of a spectrum “Plan B.” Happily for Cablevision, there is also such a thing as “unlicensed spectrum” which — as I and other boosters of the competitive power of open spectrum continually point out — is available to everyone and cheap to deploy (relative to building a licensed network from scratch).

Hence the recent Cablevision announcement that it will deploy a wifi network in conjunction with its cable network. As a Plan B, it has some real advantages over using licensed spectrum, as well as some potential disadvantages. But given Cablevision’s unique deployment situation — it is primarily located in New York City and Long Island which gives it incredible population density for its relatiely small footprint — this fall back position may work for it where it would not work for other cable companies.

For a business supposedly on the edge of extinction, newspapers attract an odd assortment of newcomers eager to get in on the game. Real Estate billionaire Sam Zell bought Tribune last year, marking fresh blood coming into the newspaper and broadcasting biz. Now, as Zell sells off some chunks of Tribune to to pay down debt, it would appear another new player is poised to enter the game.

According to this story, NYC based Cablevision has beat out Rupert Murdoch for the Daily News. Unlike the Murdoch deal, this would not implicate any FCC rules and should not raise too many hackles on the antitrust side. Arguably it has an impact on the local advertising market, but hardly enough to make a difference. Besides, I’m not sure if there is any evidence that the newspaper advertising market and the cable advertising market are related.

What is more interesting is “why does Cablevision want Newsday at all? And should I care?” Cablevision has in the past tried to break out of its main business as a cable operator and dabbler in cable programming and owner of various sports venues and franchises. At various points, it has tried to launch a satellite service and was a bidder in the last two major FCC spectrum auctions (coming away empty handed both times). Is this a toe in the water to go into the newspaper business or a more limited foray?

It is interesting to note that a few years ago, Cablevision was sued by the Jets over an alleged effort to block the Jets from building a sports stadium that would compete with those owned by Cablevision. Among the charges, the Jets claimed that Cablevision routinely gave its own front group free advertising time on its cable systems to drum up support against the Jets’ stadium effort, while refusing to sell advertising time to the Jets for pro-stadium advertising. Owning Newsday will certainly give Cablevision a bit more political clout in its backyard should it find itself wanting to lobby local government again. While I don’t think that’s the primary reason for Cablevision buying Newsday, it does make for an attractive bonus from Cablevision’s perspective.

Unfortunately, I think only DOJ or the FTC will examine the acquisition. It doesn’t trigger either FCC rules or local franchise review. But this sort of impact on the diversity of news sources and the ability to leverage ownership of different media assets for political gain falls outside antitrust review — even in an administration that cares about antitrust. So for better or for worse, barring some new bidder emerging, I expect the deal to sail through easily.

There has long been reason to suspect the data which the cable industry provides to various reporting services like Warren Communications News, Kagan Research, and Nielsen Media Research for U.S. cable coverage and subscribers precisely because the cable industry has considerable incentive to lie about it. Specifically they have incentive to under-report both coverage and subscribers so as to avoid a finding that the 70/70 limit – that seventy percent of American homes are passed by cable and that seventy percent of homes subscribe to cable – has been reached, thus triggering additional FCC regulation of the industry. The numbers have danced around the mid- to upper-60% range reported in these sources since 2004, only tipping over in Warren Communications News’ Television and Cable Factbook, which recently reported a 71.4% take rate to the FCC.1 When it became clear that the FCC was prepared to take action to invoke the 70/70 rule on the basis of the Warren data, the managing editor of Warren Communications News’ Television and Cable Factbook immediately called its own data into question in an interview in Communications Daily:

The figures from the Television and Cable Factbook aren’t well suited to determining whether the threshold has been met, said Managing Editor Michael Taliaferro. Taliaferro said Factbook figures understate the number of homes passed by cable systems — and the number of subscribers — because not all operators participate in its survey. “More and operators are just not giving up” those numbers, he said. “We could go with two dozen footnotes when we start to report this data.” Cable operators participating in the Factbook survey said they passed 94.2 million homes and had 67.2 million subscribers.

The FCC official who asked him for the cumulative figure didn’t say how it would be used, Taliaferro said. If he had known, he would have provided a list of caveats, he said. “It would have been a very lengthy email,” he said. Taliaferro said he did point out the shortcomings in a phone conversation with the FCC official but didn’t put it in writing because he wasn’t asked to. “I had no idea what they were doing with it.”2

I wish my employer, Media Access Project, had sufficient funds to hire me a research assistant. But they don’t. So I’m going to turn to the collective readership for a bit of fast research to help me refute the pack of lies the cable industry is spreading.

Turns out, however, that Martin did not just pull the numbers out of his posterior. They came from the Warren Communications News Television and Cable Factbook, a neutral and respected industry reporter. According to the Warrens data, cable serves over 71.4% of the relevant market — more than enough to trigger the 70/70 threshold and give the FCC authority to reregulate cable to promote diversity.

To my considerable surprise — given how much Warrens depends on their reputation for accuracy to convince customers to pay many thousands of dollars for this research — the cable industry prevailed on the managing editor of The TV and Cable Factbook to declare their own research unreliable. In fairness, they claim the research is unreliable only when used to prove that the cable industry has passed the 70/70 threshold, so I assume all the advertisers and businesses that rely on this data will not be troubled. They also claim tat the data are unreliable due to systemic underreporting by cable which, as my friend and fellow Wetmachine blogger Greg Rose observed, means that the number of households served must be even more than the 71% Warrens initially found.

Such is the power of cable, however, that the industry reporters following this have uncritically lapped up the NCTA party line while failing the elementary school math noted above (ironically, proving the point about how media consolidation is all about serving corporate interests). Martin’s fellow Republicans on the Commission, McDowell and Tate, apparently determined to make sure that everyone knows that they would never pursue a ”vendetta“ against an industry merely because it has demonstrated market power, sent this letter to Warrens asking for more information (and apparently missing the elementary school math that if you underreport cable subscribers that means they serve more than the number reported). The letter takes a rather nasty shot at Martin, as well as inviting explanation for why the other reporters come in so much lower and looking for validation of the numbers.

Of course, as Rose pointed out in his post, the other numbers come in lower because they are estimates where the cable operators provided even less info than they did to Warrens. But it occurred to me that there is a rather simple way to make the point that even incumbent cable operators passed the 70% threshold sometime ago.

Back for the 2005 cable report, NCTA submitted numbers ranging from 62% to 68.9%. Since then, with the exception of the most recent cable quarter, the cable operators enjoyed consistent growth in their basic subscriber numbers. I would like to find out the quarterly basic subscriber statistics for the largest cable operators (Comcast, Time Warner, Cablevision, Cox, and Charter). If the largest operators enjoyed significant growth after NCTA condeded 68.9% as a valid measurement, then we can have reasonable assurance that findings above 70% are accurate. Problem is, I’m a little strapped for time here.

So I’m turning to the distributed power of the web for help meet the McDowell/Tate Challenge of ensuring that the data meet the highest standards of ”trustworthiness, truthfulness, and viability” (which, I have to say, has not exactly been the case with Commission cable reports before Martin took over. Either make a donation to MAP to get me a research assistant, or send me an email with useful cable statistics.

The cable industry is running scared in the face of FCC Chairman Kevin Martin demanding a vote certifying that the cable industry has met the 70/70 test. This test gives the FCC greater regulatory authority once cable is available to seventy percent of American households and seventy percent of those households subscribe to cable. This is clear from the way the cable industry has pulled out all stops to avoid the finding, even persuading Warren Communications News to discredit its own Television and Cable Factbook, claiming that there are technical reasons for regarding it as unreliable.

It’s worth quoting the remarks of the managing editor of Warren Communications News’ Television and Cable Factbook to Communications Daily (also owned by Warren) on the subject:

‘The figures from the Television and Cable Factbook aren’t well suited to determining whether the threshold has been met, said Managing Editor Michael Taliaferro. Taliaferro said Factbook figures understate the number of homes passed by cable systems — and the number of subscribers — because not all operators participate in its survey. “More and operators are just not giving up” those numbers, he said. “We could go with two dozen footnotes when we start to report this data.” Cable operators participating in the Factbook survey said they passed 94.2 million homes and had 67.2 million subscribers.

‘The FCC official who asked him for the cumulative figure didn’t say how it would be used, Taliaferro said. If he had known, he would have provided a list of caveats, he said. “It would have been a very lengthy email,” he said. Taliaferro said he did point out the shortcomings in a phone conversation with the FCC official but didn’t put it in writing because he wasn’t asked to. “I had no idea what they were doing with it.”’

Taliaferro, who relies on cable industry data to put out the Factbook, clearly came under a lot of pressure from the industry to badmouth his own data, but even then he didn’t get the job done. If the problem is understating number of households passed and number of subscribers because cable operators refuse to provide the data, as Taliaferro suggests, then Warren’s Television and Cable Factbook must understate the number of households passed and subscribers. This means that the real numbers — the numbers we’d have if all the cable providers coughed up the data — have as a matter of mathematical certainty to be greater than 70% coverage and 70% subscription. Taliaferro, attempting to please the cablecos, has in fact given evidence that the Warren figure of 71.4 percent of homes having gotten cable as of October 10, 2007 has to be an understatement of the reality.

The only way the Warren data could fail to support invoking the 70/70 rule would be if cable providers systematically over-reported the number of households covered and number of subscribers. And they’d have to be crazy to do that, since they want to avoid regulation at all costs. I know from personal experience that the cablecos lie to avoid regulation. It was patent from data submitted by Comcast and Time Warner in connection with the Comcast-Time Warner-Adelphia transaction that Comcast tried to circumvent the 30% cable ownership cap by submitting year-old data for some affected DMAs while Time Warner submitted current data. (You can see where I called them out on this in my expert submission on MAP’s Petition to Deny.)

This is why Warren is so desperate to sow confusion about its own data. The Nielsen and Kagan numbers (which are lower than the Warren numbers) are estimates. The cablecos don’t share nearly as much proprietary data with Nielsen and Kagan as they do with Warren, which is regarded as a safe, cable-friendly trade press outlet. When Warren shared the data with the FCC, the footnote they neglected to provide with it should have read: “Don’t use this data for regulatory purposes because it will make the people who gave it to us very cranky.” Hence the attempt on Warren’s part to cover up the embarrassing bits like a stripper at a police raid — by misdirection.

It’s also significant that two Republican FCC Commissioners, Deborah Tate and Robert McDowell, have made a huge deal out of this non-story by writing to Taliaferro that “We wanted to take this opportunity to ensure that at least these two Commissioners are indeed seeking the trustworthiness, truthfulness, and viability of the data in question.” Either they don’t understand what the mathematical meaning of the understatement by cable operators is, or they’ve decided to play cableco sock-puppets. I’m hoping for the former, but I’m betting on the latter, athough I’d like to give them the benefit of the doubt.

In addition to voting the 70/70 finding on a 3-2 with Chairman Martin and the two Democrats forming a majority for real regulation of the cable industry, Chairman Martin should put forward a regulation requiring that the cablecos provide detailed coverage and subscription data publicly to the FCC on an annual basis, certified by the CEOs of the cablecos under penalty of perjury. If Tate and McDowell vote for a rule like that with real teeth to keep the cablecos honest and provide the necessary data to the American people, then they really are concerned with the accuracy of data.

I gotta hand it to the NCTA – they really know how to spin the press. Given the outrageous excesses of market power displayed by incumbent cable operators, you would imagine that activists would leap at the opportunity offered by Kevin Martin to reign in cable market power – regardless of whether one likes Martin personally or thinks he is a Bellhead or industry tool in other respects. But no, over the weekend, the NCTA has done an exemplary job of spinning the upcoming sledgehammer to cable market power as a bad thing.

[A]t such time as cable systems with 36 or more activated channels are available to 70 percent of households within the United States and are subscribed to by 70 percent of the households to which such systems are available, the Commission may promulgate any additional rules necessary to provide diversity of information sources. Any rules promulgated by the Commission pursuant to this subsection shall not preempt authority expressly granted to franchising authorities under this subchapter.

Now you would think anyone who opposes media concentration would be jumping for joy here, wouldn’t you? At last, a clear source of authority for the FCC to regulate cable in the name of diversity, and a directive from Congress to do it (without preempting local franchise authorities). And one would certainly expect that the Democratic Commissioners, Copps and Adelstein, who have repeatedly shown themselves stalwart champions of diversity and enemies of consolidation, would rush to seize the moment. But while I hope the later is true, some normally sensible people are buying into the cable spin that this is somehow bad because (choose however many apply):

A) It’s an “archaic leftover” of another time and nowadays cable is “highly competitive.”

B) It’s not really true that the 70/70 test is met anyway so the courts will just reverse it.

C) Kevin Martin is an evil Bellhead who has it in for cable, wants to deregulate broadcast media, and shafted local franchising authorities, so you know this must somehow be evil, even though it is something media reform advocates have fought for over 20 years to achieve.

D) Somehow, this is just an effort to distract us from the fact that Kevin Martin is an evil Bellhead who eats puppies and throws kittens into trees for his amusement.

G) Somehow this helps Kevin Martin deregulate the broadcast industry.

Having spent the last several years trying to get the FCC to recognize the goddamn truth that 70/70 was met years ago, and trying to get the FCC to address leased access and carriage complaint issues, the 30% cable ownership cap, and a bunch of other reforms to address cable market power, I am just a shade peeved to see folks who should know better eating out of NCTA’s hand. Because public policy is not about whether I like or dislike the current FCC Chair or whether I would rather he focus on reigning in telcos rather than cable cos. It’s about what is the best public policy. And what Martin has put out for a vote: 70/70, reform of leased access and the carriage complaint process, and reaffirming the 30% cable ownership cap, are all things justified by the record and urgently needed.

We have already seen that when the Democrats work with Martin to protect independent programmers, good things happen. Holding the cable operators accountable under the set-top box law, letting The America Channel arbitrate its case against Comcast, these are areas where Copps and Adelstein recognized that their interest in promoting diversity and free expression converged with Martin’s interests in restricting cable market power and worked together to create well-crafted rules that promote the public interest without selling anyone out. This is that “bipartisan” thing everyone claims they want – work together where you can, oppose each other when you must, and always keep in mind the public interest rather than your partisan ends.

Below, I run through some background on what’s going on — especially with the 70/70 test. Since that will make this ridiculously long, I will save for Part II why Copps and Adelstein need to seize this opportunity before the NCTA gets a chance to work its mind-clouding magic and once again get a quorum to vote that slavery is freedom and market power is competition. And, since Martin’s motives appear to absolutely rivet everyone’s attention, I will give my best speculative guesses followed by my explanation of why Martin’s motives don’t matter. Because, as in all good politics, Martin has maneuvered it so that he will get his political pay off whether the Democrats vote for the cable items or not. So rather than waste the best chance at cracking cable market power in the last 20 years and give Martin a political victory anyway, the only sensible thing to do is vote for the items and make it clear that doing the right thing in cable over here doesn’t give Martin a pass on previous bad Orders (like preempting local franchise authority) or give a license to deregulate broadcast ownership.

Well, it took nearly a year since the FCC committed to reforming the leased access and carriage complaint processes as part of its Adelphia Transaction Order, but the wait proved worth it. On June 15, the FCC released a notice of proposed rulemaking asking all the right questions and opening the door for major changes in two critical but dysfunctional laws designed to break the stranglehold big cable companies have over cable programming: cable commercial leased access (47 U.S.C. 532) and the prohibition on favoring affiliated programming (aka “carriage complaint process”) (47 U.S.C. 536).

Done right, these two laws can usher in a new era of independent programming by giving programmers access to cable systems on fair terms. As you might imagine from the current cable programming universe — in which we get 30 different flavors of HBO (affiliated with time Warner) and however many Comcast-affiliated channels Comcast chooses to carry regardless of how few people actually watch, but you can’t find local programming or programming that competes with Comcast or Time Warner programming — the FCC has done a rather crappy job of implementing these rules since Congress passed the current versions in 1992. Nevertheless, wild-eyed optimist and occassionally successful crusader for lost causes that Iam, I think we have a real opportunity here to make these rules work. All it will take is for the progressives and conservatives who like to whine about how the media is all biased one way or another to get off their patooties and actually file something with the FCC. Then all the progressive and conservative would-be programmers will have their chance to sell their programming directly to audiences rather than negotiating with the likes of Brian Roberts, Sumner Redstone or Rupert Murdoch.

Notice appeared in the Federal Register on July 18, which makes comments due September 4 and reply comments due September 21. For those without calendars, this translates to the day after Labor Day and the day immediately before Yom Kippur. So I confess I begged for and got and extension. Now, comments are due September 11 and reply comments due October 12. The relevant docket number for those of you who file (and you know you all should!) is MB Docket No. 07-42.

So tired of watching crap you hate on cable, and wondering why people can’t get good programming on despite having a gazillion channels? See below . . . .

Jim Snider at New America Foundation has written an excellent piece extensively documenting how broadcasters leverage their response in national emergencies and support of charitable causes to get special regulatory goodies and rules that keep competitors out. You can dowload a copy here.

While in one sense not news to anyone in DC, most people are unaware how broadcasters shamelessly take the coverage of local charity events or other efforts (which (a) are local news and so worth doing anyway, and (b) other companies routinely do) and use them to justify many billions of dollars in privileges such as must-carry rights on cable systems and limiting the ability of rivals such as satellite radio or Low-Power FM to compete. A bit of advocacy expounding, and a few thoughts on Jim’s paper and policy recommendation, below.

In the dead of night, just before the latest draft of the Stevens bill came out, a helpful Telco lobbyist inserted a little provision to stack the deck in the case of judicial review. Section 1004 of the Stevens draft now places exclusive jurisdiction for all decisions by the FCC in the D.C. Circuit. This includes not just network neutrality, but media ownership, CALEA, wireless issues, anything.

Why would anyone do that you ask? Because the D.C. Cir. is, without doubt, the most activist court in the land when it comes to pressing its vision of media and telecom policy. More than any other court, the D.C. Cir. can be credited with destroying hope of telecom competition in the United States by perpetually reversing and remanding the FCC’s efforts at rulemaking and enforcement until the FCC finally gave up and effectively deregulated. The D.C. Cir. is also responsible for vacating (eliminating by judicial fiat) the rule preventing cable companies from owning television stations where they have cable systems, and overturning much of the FCC’s cable and broadcast ownership limits. Finally, through the legal doctrine known as “standing”, the D.C. Crcuit has done its best to make it impossible for regular people to challenge FCC decisions or bring individual cases on antitrust grounds.

As a practical matter, the move privileges large companies that can afford to litigate in DC. If you are a small company somewhere else, upset about how FCC action impacts your life, you must now get a lawyer familiar with DC practice ad Petition for review here. Of course, the best (and most expensive) firms most likely have deals with your larger rivals, precluding them from taking the case.

So no wonder why the telco lobbyists want this provision. But why on Earth would anyone else? However, because it comes in at the end, while most of the action takes place elsewhere, it may slip by.

So certainly go to Save the Internet and follow the directions on how to call the Senate Commerce Committee and tell them you want real network neutrality. But don’t forget to tell them at the top of your lungs STRIP OUT SECTION 1004! DO NOT GIVE THE DC CIRCUIT EXCLUSIVE JURISDICTION OVER FCC RULES. You’ll be glad you did.

Back some months ago, I wrote about fighting further consoldiation in cable. In particular, I talked about fighting the proposed division of the Adelphia cable systems by Comcast and Time Warner and system swaps between Comcast and Time Warner which would give Comcast and Time Warner dominance in many regions of the country. As usual, back when the parties filed their applications with the FCC in May, the parties predicted a cake walk and the industry analysts agreed.

The smart money is still betting on no major conditions, with the possible exception of requiring Comcast and Time Warner to provide access to their regional sports programming. But a number of recent developments have raised questions. Between that and the political situation, I suggest that, like that remaining piece of Christmas cake at New Year’s, things have gotten a little stiffer and a little stickier than expected. Warning: a lot longer and not nearly as fun as my last cable post, but worth it get a picture of events you won’t get from trade journalists and industry analysts…..